Jon: WELCOME BACK TO GRUDEN TALK, THE SHOW WHERE WE DISCUSS THE MOST IMPORTANT ISSUES OF THE DAY. BANDLEADER HERM EDWARDS, HAVE YOU FOLLOWED THIS GAY MARRIAGE SUPREME COURT CASE?

Herm: NO, BECAUSE I’M SICK OF PEOPLE CONFUSING ME WITH TONY DUNGY.

Jon: WELL LEMME TELL YA, THINGS ARE GETTING PRETTY INTENSE. THE SUPREME COURT IS GONNA HEAR ARGUMENTS ABOUT IT THIS WEEK. KIDNA LIKE WHEN YOU APPEAL A FINE TO MERTON HANKS. AND WE GOT THE DEAN OF UC-IRVINE LAW SCHOOL, ERWIN CHEMERINSKY, HERE TO EXPLAIN IT. HOW YA DOING, ERWIN?

Erwin: I’m doing well, Jon.

Jon: SO SHOOT US STRAIGHT, ERWIN, HOW’S THE SUPREME COURT GONNA RULE ON THIS ONE?

Erwin: Well if you look at previous cases like Romer v. Evans and Lawrence v. Texas it’s actually quite conceivable that the Court would rule against the ban. Justice Kennedy wants to be on the right side of history on this.

Jon: THAT’D BE GREAT IF THEY WERE ON THE RIGHT SIDE OF THE HISTORY. THAT’S WHY THE NFL JUST BANNED THE TUCK RULE; THEY KNOW THAT I SHOULD’VE MADE THE SUPER BOWL.

Herm: THE SUPREME COURT IS JUST TRYING TO MAKE UP FOR ITS PAST MISTAKES.

Erwin: Well, in a way, it is. Bowers v. Hardwick was overturned in only 17 years and Lewis Powell said that he regretted that decision more than any other.

Jon: THE THING WITH SUPREME COURT JUSTICES IS THEY ALL HAVE LIFETIME EXTENSIONS. YOU GOTTA BE CAREFUL OR YOU’LL HAVE DAVE SOUTER EATING UP YOUR CAP SPACE.

Herm: GEORGE H.W. BUSH SHOULD”VE KNOWN THAT HE’D BE A LIBERAL.

Erwin: Well, Souter was a great jurist, even if his politics were different from Bush’s.

Jon: OF COURSE. HE WAS ON THE RIGHT SIDE OF BUSH V. GORE AFTER ALL. COULD HAVE AVOIDED THE IRAQ WAR IF EVERYONE ELSE HAD AGREED WITH HIM. HE’S LIKE THAT REPLACEMENT REF WHO GOT OVERRULED ON THE FAIL MARY.

Herm: IF AL GORE WERE PRESIDENT THEN IRAN WOULD NOT BE A REGIONAL POWER.

Jon: HERM, SINCE WHEN DO YOU KNOW ABOUT GEOPOLITICS?

Herm: RED LOBSTER PLACEMAT.

Erwin: I’m sorry, what does the court have to do with Red Lobster?

Jon: NOTHING, REALLY. BUT I GOTTA SAY, THESE COUPLES BRINGING THEIR CASE BEFORE THE COURT, PERSUADING EVERYONE THAT THEY DESERVE THE SAME RIGHTS AS HETEROSEXUAL COUPLES, THAT TAKES THE WILL TO SUCCEED. THAT’S WHY THE HOLLINGSWORTH DEFENDANTS ARE GRUDEN GRINDERS IN MY BOOK.

Herm: AND YOU KNOW THAT AIN’T THE ONLY THING THEY’RE GRINDING.

Jon: AHHHH, BE QUIET YA BIG DUMMY.

Erwin: I’m totally lost.

Jon: THAT’S OK BECAUSE WE’RE OUT OF TIME ON GRUDEN TALK. PLAY US OFF, HERM EDWARDS 7.

1995: There was a gay soldier crying in the next bunk. He was always getting fucked with. I hugged him and made sure no one ever fucked with him again.
Today: Was at a meeting and super macho meat head next to me was talking shit about gays. This meeting occurred at a museum with a lot of historical guns. He talked about how the gay/communist/terrorist loving people are going to kill “Merica.” So much hatred and ignorance under the guise of freedom while intent on taking others’ away. I am starting the hate the human race so much.

While I get the thrust of what you are saying, the Supreme Court, if it doesn’t punt, is basically going to decide whether Americans are allowed to vote on an issue or whether a solution can be divined from a document that, when it was drafted, the law considered homosexuality a crime “greater than rape” and “a crime not fit to be named.”

I’m not sure the law is a good basis on which to decide this issue. I think the campaign for a ballot box victory would be a more meaningful solution.

First off, let me be clear that I’m not lumping in people who make the argument above with the God Hates Fags asshats.

I hear what you’re saying, but I disagree. When the Constitution was drafted, African Americans were considered property not people and yet that didn’t stop the Supreme Court from striking down laws that said whites and blacks couldn’t marry.

And moreover, the Court has already ruled plenty on issues of gay rights, and if they can make rulings both ways on gay sex, they can certainly rule on gay marriage, as that issue actually has a legitimate set of state matters at stake.

But most of all — there are some things we just shouldn’t decide on majority rule. When I wanted to get married, I didn’t have to put it to a state vote. According to the 14th Amendment’s guarantee of equal protection, gays shouldn’t have to have it put to a vote either.

3. All other classes – rational basis review, discriminatory laws are upheld. Included classes (age, disability, wealth, political preference, political affiliation, etc.) A law can discriminate, but most discriminatory laws aren’t passed.

California considers sexual orientation to be a suspect classification, other states consider it to be quasi-suspect (IA, CT), and some states consider it non-protected.

Anyway, the Court will probably say the Prop 8 supporters who brought the appeal don’t have standing anyway, and will punt it back to California, where Prop 8 will either remain overturned or will be knocked around for a few more years before it goes back to the SCOTUS.

In conclusion, your pink and red equal signs on twitter and facebook DO NOTHING.

@ Otto: I mostly agree, but it’s worth remembering that in general courts tend to be conservative institutions and often find ways to make their rulings benefit the rich and/or powerful, even cozying up to authoritarian regimes.

So, rights may be rights, but what is the best guarantor of rights being actually protected? I’m not sure exactly how I come down on all this, but I think I trust electorates more (don’t get me wrong, voters are generally petty idiotic and often prejudiced, I just trust judges and courts less). Look at the UK, for example — absolutely no tradition of judicial review, and they seem to get on fine. Also, when you adjudicate these issues through courts, it tends to be only elites involved, and activists can sidestep kind of interactions that might lead to real consensus.

So, if the courts are going to decide this, I hope they rule in favor of non-discrimination as they should. However, I might prefer they didn’t have the authority. It makes me nervous, but Citizens United was a rights-based ruling, right? I’m not sure we wouldn’t just be better off without them.

Gruden and NFLheads are pro gay. That’s cause for celebration JJ, regardless of myriad assholes and the expected punt predicted by Cuntler. (Hope you’re wrong, but I think you’re right.) The best thing about it is the paradigmatic shift: the gay rights issue is now discussed in terms of recognizing equal standing, not “tolerance”–which is fancy talk for “I hate u but do ur thing as far away from me as you can”. Hey, it may be better than “burn in hell sodomites”, but it’s inevitably demeaning.
As for leaving the issue to voters, no way man. For much of the voting electorate, religion is the source of values, not laws. So your congregation is against abortion, mixed race unions, expression of same-gender love, and muslims associating freely? Fine; don’t exercise those rights, and pontificate at will. But that’s the law, fellow citizens, and your values are not above it in our shared mortal realm. And that’s why courts are essential.
/holds out fake arm

Next time, just look at her with very concerned look on your face and say, “Oh my Lord, I had no idea that your marriage was so weak that it would crumble just because some gay people got married thousands of miles away from you. You poor, poor thing.”

For what it’s worth, pushing back on the MIL’s politics (perhaps more gently than that) can be a healthy thing in my experience.

In re: Otto’s point about slaves at the time of the constitution, you are ignoring the 14th Amendment and the legislative solutions that struck that language from the document. The people amended those documents to so reflect because that is the process that was put in place at the founding. That’s why a ballot box solution is superior to judicial fiat.

Also, no one is suggesting that some things are not best left up to the ballot box. However, let’s not continue to create a large body of interstitial federal common law for which absolutely no legal basis exists. Let’s fix the problem where the channels are clear we are supposed to go to do it–the legislature.

Finally, when you wanted to get married, you didn’t have to put it to a vote because the law authorizing said marriage had already been passed. Cheers to you, Otto. May your comments continue to be hilarious.

I am suggesting that somethings are not best left up to the ballot box. The majority isn’t always right. If the majority in Mississippi in the 1960s had their way, everything would still be segregated. Also, divorce and abortion would be governed state by state, and people would drive across state lines to do what they want. It is simplistic to say that ballot box solutions are superior. If that was the case, the public would vote on everything and we wouldn’t have a representative republic.

Jefferson wrote “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

I think he means evolution through legislative, judicial AND executive processes, hence the whole system of “checks and balances”.

It is obtuse to say “ballot initiatives > judicial initiatives.” Even after the 14th Amendment was passed, it took until the ’60s to properly apply it in cases about interracial marriage (Loving v. Virginia), so, many times, judicial initiative > ballot initiatives. The founding fathers kicked so much ass because they knew that the people, the executive, Congress, and the judiciary all needed to counterbalance each other. What you’re saying rejects that.

But the 14th Amendment didn’t wipe away the laws against interracial marriage, did it? Some state legislatures moved to repeal those laws on their own, sure, but many more moved to make them harsher and more punitive. That’s why the Supreme Court decided to step in with Loving v. Virginia in 1967 — you know, nearly a century after the 14th Amendment had been ratified?

Ballot box solutions are not always superior to judicial decisions. Just stick with the analogy of race here — ballot box decisions gave the 20th century south segregation, discrimination and disfranchisement. State legislatures across the South — duly elected by all the people who were allowed to vote, according to previous actions of the same state legislatures — voted in all those discriminatory measures. It took the courts, with judges unbeholden to the whims of the ballot box, to undo those injustices.

Yes, I was fortunate enough to be born a straight, white male to whom all rights in this country have been granted freely and without a fight. Luckily, I was also born smart enough to realize that not everyone has been afforded those same privileges.

Cheers to you, as well. May your comments continue to be nicely dickish. It’s hard to believe your side is losing this public debate.

Otto, your whole argument is predicated on the Supreme Court agreeing with what you think the correct decision is. If they don’t punt, and reinstate Prop 8, you have just fucked the rights of the very people you sought to help. Federal interstitial decree is only good if they agree with your point of view. The ballot box does not rely on the good will of 9 men in black. You have a blind spot on this issue because of your stance. Also, the ballot box is ALWAYS superior. Just because you may think you can’t achieve a victory there doesn’t mean that it isn’t the best solution. The popular will is always superior to a court decision. That really isn’t debatable.

What we are saying is the 14th Amendment was passed in 1866. It took 101 years for the judiciary to apply the equal protection clause to interracial marriage. States like Virginia had laws on the books preventing interracial marriage for 100 years after the 14th Amendment was passed. So clearly the 14th Amendment itself did not wipe out these laws alone. The equal protection clause says nothing about race or marriage. Judicial interpretation of the 14th Amendment overturned the ban on interracial marriage, just as judicial interpretation will likely overturn the ban on gay marriage. I guess I don’t understand why Prop 8 should withstand judicial interpretation of the equal protection clause when the Virginia law didn’t?

“The popular will is always superior to a court decision. That really isn’t debatable.”

I take it you failed 9th grade civics? This is completely debatable and is the reason we have an appeals court structure that allows ballot initiative laws to be overturned. People are stupid and don’t know what they are voting for. Look at TABOR laws in Colorado.

Of course Loving was predicated on the 14th. You implied the ratification of the amendment swept away the problems and the state legislatures would act accordingly. It didn’t and they didn’t. The Court had to intervene and apply it to strike down the miscegenation laws of sixteen states a century later.

Otto, your whole argument is predicated on the Supreme Court agreeing with what you think the correct decision is.

No, it isn’t. My whole argument is predicated on the fact that there are some things that cannot be put to a popular vote. The courts need to decide some things. That’s sort of the reason we have them, and don’t just open everything up to a referendum.

The popular will is always superior to a court decision. That really isn’t debatable.

Oh, it isn’t? Golly, I’ll just shut up then. I had a whole bunch of evidence on my side about how “popular will” was used to intern Japanese-American citizens during World War II, and how “popular will” was employed to sanction the lynch mob justice of the Jim Crow South, and how “popular will” was used to wipe the Native Americans off the map, and how “popular will” allowed local communities of Protestants to legislate against Catholic schools and priests for much of the nineteenth century … but hey, if you’ve decreed that it’s not debatable, I’ll just stop.

Not to be a nit-picker as I know this isn’t a con law class, but your issues with the 14th Amendment and the 101 years are basically because the Supreme Court hadn’t told us that the bill of rights were incorporated to the states under the 14th Amendment. We now know that definitively which is why these things don’t take 101 years any more.

I understand that many disagree with me so I’m not exactly expecting a hero’s welcome here, but I didn’t fail civics. A law (assuming its constitutionality, which is presumed) is superior to judicial fiat. A court can and does overturn elected laws. I get that, but if you want to secure your rights, having a majority of people in your state ratify them is just plainly better. Sorry, Cuntler.

I’m talking about the force of law and the consent of the governed being greater than judicial fiat. Not, as you mistakenly state, the solutions by said law. Implicit in my argument is that I believe a ballot box victory in favor of gay rights is superior to overturning a ban in California to establish them. I’m not really sure why you would argue with that. It is actually pretty funny. I’m not saying the court won’t strike it down, just that a more significant victory for gay rights would absolutely be a ballot box victory. That is 100% true.

I guess if you are “securing rights,” I would agree that having the people secure them is better than having a judge secure them. But if the people are denying rights, as Prop 8 does, have a judge secure those same rights which were denied is infinitely better. Do you disagree with that?

Not at all. I’m really not disagreeing with anything. My conclusion has always been that a ballot box victory would be the best victory. I completely understand if people will take any victory. Good for them. If the Supreme Court goes against gay rights, it will do infinitely more harm than Prop 8 did.

Of course not. Given Otto’s reaction, I could see why you would think that. I never said that, I just think it is an awful lot of eggs to put in the basket of 9 people when everything seems to be showing gay rights gaining popular support. If the Court blesses what Otto considers to be on par with segregation, you’re looking at another 100 years and people testing the lines to see how to curb those rights. It only happens EVERY time. Look at civil rights, voting rights, and privacy rights. We basically keep testing the limits of these things because the consent of the populace wasn’t secured. So people feel like that injustice allows them to do heinous things.

Looks like this conversation is pretty well wrapped up, and I don’t have much to add about the 14th amendment. I just have two quick points about framing and the way we think about these things:

1) It’s easy to feel like some things shouldn’t be determined by popular vote, that there are inviolable rights that need protection. I agree. The question for me is what makes us think that courts are the best institution to do this? What makes them good at this? There’s a certain amount to be said about their expertise in the law, but what vision of rights does that training (and the selection/vetting process) impart? Given their very different interpretations of the constitution, how comfortable are we arguing that their collective interpretation of the constitution is a good one?

2). The discussion of Mississippi voters vs the Supreme Court has so far completely elided the state/federal distinction. There has been no discussion of Mississippi state courts or national public opinion. I don’t know, but I suspect that Mississippi courts were pretty comfy with segregation and the national electorate was against it (though perhaps by a pretty slim margin). So that seems more properly a conversation about federalism and what kinds of rights states should be allowed to restrict. Why give courts the power to decide that rather than the people? That seems to me to be partially an accident of history and partially a successful effort by elites to protect their wealth and property from democratic control (which I might agree is important, just trying to talk about how/why this particular configuration of authority came to be). I think we have to be careful not to just naturalize the way it’s done (or the way it’s done *here*).

3) When thinking through these questions, I think we are often too fixated on the U.S. As I mentioned above, the UK hasn’t had much trouble protecting rights without a tradition of judicial review. Every act of Parliament is inherently constitutional. But while it does allow decisions to be made at the local level, it’s much more centralized and would never let something like segregation or gay marriage be decided at a local level (I think they wouldn’t, anyway, but I’m no expert). That doesn’t prove anything either, but I think it helps illustrate that it’s at least arguable that we could protect rights through democratic means at the national level as well or better than courts can.

Anyway, I’m not saying judicial review is a bad idea. I just think we have to be careful to keep some of these questions/distinctions in mind and not let ourselves treat the American configuration as natural or inevitable.